ALJDEC decisions subject to certification as final

08F-H0184-ROC · Registrar of Contractors · 2008-12-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 2, 2008 at 1:30 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and, based upon the entire record; the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. Respondent is the holder of a Class B- License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent constructed a new residence for the Complainant. 3. On or about November 14, 2007, the Complainant filed a Complaint, against the Respondent, with the Registrar of Contractors alleging: “Home not finished and its been over 2 years. Verbal contract was to be finished in 3 to 4 months. Written contract no more than 180 days.” 4. Credible testimony and evidence, presented at hearing, established that, on or about February 20, 2007, the parties had entered into a Settlement Agreement wherein the parties altered and extended the date of completion of the Complainant’s residence, resolved the issue of whether late fees apply and agreed upon completion date for the residence. There was no dispute that the parties’ Settlement Agreement was knowingly and voluntarily entered into and the Agreement is found to be binding on the parties. 5. Credible testimony and evidence, presented at hearing, established the Complainant has taken possession of the residence and changed the locks denying access to the Respondent. 6. Credible testimony and evidence, presented at hearing, established the local building authority has issued a Certificate of Occupancy and the Complainant has placed the residence for sale. 7. The parties are now involved in a money dispute regarding the money claimed by the Respondent for the construction of the new residence and the Complainant’s claim for monetary damages against the Respondent. 8. The parties’ monetary dispute was shown to be a good faith monetary dispute which will necessarily involve a monetary judgment and which should be resolved, if at all, by a civil court of competent jurisdiction. 9. The credible evidence of record is found to be inadequate, and fails, to support a finding that the Respondent abandoned the construction project. 10. The credible evidence of record is found to be inadequate, and fails, to support a finding that the Respondent committed a wrongful or fraudulent act. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the State’s Contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the applicable charged sections of the State’s Contracting Laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDed Order In view of the foregoing, it is recommended this matter be dismissed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, December 17, 2008.

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2008, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com